State Of Rajasthan & Ors vs Shankar Lal Parmar

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8404 of 2011

[Arising out of S.L.P. (C) No.30570 of 2010]

State of Rajasthan & Ors. ...Appellants

Versus

Shankar Lal Parmar ...Respondent

W I T H

C.A.No.8405/2011[Arising out of SLP(C) No.9847 of 2011];

C.A.No.8406/2011[Arising out of SLP(C) No.17093 of 2011];

C.A.No.8414/2011[Arising out of SLP(C) No.14480 of 2011];

C.A.No.8407/2011[Arising out of SLP(C) No.14789 of 2011];

C.A.No.8408/2011[Arising out of SLP(C) No.14951 of 2011];

C.A.No.8409/2011[Arising out of SLP(C) No.20326 of 2011];

A N D

C.A.Nos.8410-8411/2011[Arising out of SLP(C) Nos.22755-22756

of 2011].

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. The solitary question that arises for our consideration

in the instant and the connected appeals is whether an

2

employee would be entitled for the grant of 'Selection

Grade', automatically, at the first instance, after the

completion of 9 years, at the second instance, after the

completion of 18 years and at the third and last

instance, after the completion of 27 years of service,

even when he has earned censure in the past years of

service.

3. In fact, on the strength of an Order pronounced by

Division Bench on 12.12.2003 in the matter of Devi Singh

Vs. State of Rajasthan & Ors. [reported in 2004 (2) CDR-925

(Raj)], several matters came to be filed in the High Court

of Judicature of Rajasthan both at the Principal Bench at

Jodhpur and at the Bench at Jaipur claiming entitlement for

the Selection Grade. Unfortunately, the learned Judges,

either sitting in Single Bench hearing Writ Petitions of

the employees or in Division Bench, hearing Writ Appeals of

the State, without properly appreciating or adverting to

the ratio decidendi of the case, in a stereotype manner,

went on allowing the Writ Petitions filed by the employees

and dismissing the appeals preferred by the State. The

approach adopted by the High Court in all such cases would

3

reflect that the judgment in Devi Singh's case has not only

been misread but has also been misinterpreted by them. In

fact, it was the duty of the learned Advocate for the

Appellants, who had appeared in the High Court to have

pointed out the distinction, but apparently it appears that

he failed to do so which has led to erroneous judgments.

The controversy has been pending before this Court for

quite some time, therefore, we deem it fit to decide it, by

a reasoned judgment to iron out the creases and clear the

clouds.

4. It is relevant to mention here that a Special Leave

Petition filed by the State, against one Bheem Singh was

dismissed by this Court on 06.01.2010 on the ground of

delay. The Order reads as under:

"Heard learned Counsel for the

Petitioners.

The Special Leave Petition is dismissed

on the ground of delay as also on merits.

However, the question of law is kept open

to be decided in an appropriate case."

Since the Special Leave Petition was dismissed on the

ground of delay and the question of law was clearly left

4

open, thus there is no difficulty in deciding these appeals

on merits, because the said Special Leave petition was not

decided on merit.

5. Brief facts material for deciding the instant case are

given hereinbelow:

With a view to provide relief to employees, Class IV,

Ministerial Subordinate Services and those holding isolated

posts, Selection Grades were prescribed for the lowest

posts in these services, so as to resolve the problem of

stagnation. With this intention, first Office Order was

issued by the State of Rajasthan on 25.01.1992. The

salient and important features of the said Order, relevant

for the purpose of these appeals are reproduced

hereinbelow:

"2.(i) The first selection Grade shall be

granted from the day on which one

completes service of nine years, provided

that the employee has not got one

promotion earlier as is available in his

existing cadre.

(ii) The Second Selection Grade shall be

granted from the day following the day

on which one completes service of

eighteen years, provided that the

employee has not got two promotions

earlier as might be available on his

existing cadre an the first selections

5

grade granted to him was lower than the

pay scale of Rs. 2200-4000.

(iii) The third Selection Grade shall be

granted from the day on which one

completes service of twenty seven years,

provided that the employee has not got

three promotions earlier as first or the

second Selection Grade granted to him, as

the case may be was lower that the pay

scale of Rs.2200-4000.

6. Another important and relevant Clause in the said Order

for our perusal is 7, which is also reproduced hereinbelow:

"7. Selection Grades in terms of this

Order shall be granted only to those

employees whose record service is

satisfactory. The record of service

which makes one eligible for promotion on

the basis of seniority shall be

considered to be satisfactory for the

purpose of grant of the Selection Grade."

7. Clause 7 makes it clear that only those employees would

be entitled for grant of Selection Grades, whose service

record has been satisfactory and is otherwise eligible for

promotion on the basis of seniority but is not able to get

the same as there might not be any channel of promotion or

for want of sanctioned posts in the cadre.

8. Another Department of the Appellant-State, Office of

Director General of Police (Rajasthan) in its wisdom,

6

deemed it fit to further clarify the position and issued

another Circular dated 23.07.1992. The relevant portion of

the said circular is reproduced hereinbelow:

"As far as there is question of

censure, it shall be not taken into

account as unsatisfactory service record

for the purpose of grant of selection pay

scale, and it shall not be obstructive in

grant of selection pay-scale. The period

of last seven years shall be counted from

the year, for which he is to be given

promotion."

On account of the first Office Order dated 25.01.1992

and the subsequent Circular dated 23.07.1992, as reproduced

hereinabove, State started granting Selection Grades to all

those employees, who had completed requisite number of

years in service, even if they had earned censure in

previous years but had not been promoted.

9. To remove the doubts which cropped up on account of the

Circular dated 23.07.1992, which created confusion and

doubts in the mind of the Heads of Department, as to

whether an employee would be automatically entitled to

receive the Selection Grades, after completion of 9

years, 18 years and 27 years of service, irrespective of

his earning censure or other such remarks, another Office

7

Order/letter dated 24.07.1995 was sent, by the Finance

Department (Rules Division) to the Director General of

Police, Rajasthan. The relevant portion thereof is

reproduced hereinbelow:

"I am directed to refer to your letter

No.F.15(10) P.F./Kani/90 dated 24.04.1995

on the above noted subject and to say

that one of the conditions for grant of

selection grade is that the service

record of that employee should be

satisfactory for the purpose of grant of

Selection grade. The promotion of

Government Servants, who have been

awarded the penalty of censure, is

postponed by one year. Since, penalty of

censure effects promotion by one year, it

effects grant of Selection Grade also by

one year. In the second para of your

Circular No. F.15 (10)

P.Force/Const./90/3439 dated 23.07.1992

it has been clarified that penalty of

censure shall have no effect for granting

of selection grade. This is not in

accordance with the rules/order."

This office order/ letter made it clear that if an

employee has earned censure during his service, then his

grant of Selection Grade would be deferred by one year. But

this clarification was issued by the State after expiry of

almost more than 3 years from the date of issuance of the

first office order on 25.01.1992.

8 10. However, during the interregnum period between

25.01.1992 to 24.07.1995, certain employees were granted the

benefit of the Selection Grades, despite having earned

censure. But after issuance of the subsequent Office

Order/ letter dated 24.07.1995, Appellant-State started the

recovery of the amounts from those employees who were

granted Selection Grades even though they had earned

censure. This led to filing of several Writ Petitions in

the High Court, the 1st being Devi Singh's case (supra)

referred hereinabove. All the subsequent line of cases

followed the same process.

11. To further clarify the Circular dated 23.07.1992 issued

by Director General of Police, Rajasthan, relevant portion,

reproduced at Para 8 hereinabove, another clarificatory

Circular dated 24.08.1995 was issued. Thus, vide this

subsequent Circular, the last paragraph containing the

following words "as far as there is question of punishment

of censure, it shall not be considered in service record as

unsatisfactory in grant of selection grade and shall not be

impediment in grant of selection grade" mentioned in last

paragraphs of Circular No. V. 15(10)P.Force/Const./90/3439

9

dated 23.07.1992 issued by this office, being contrary to

Rules, was withdrawn with immediate effect. This Circular

alongwith the office order/letter of Finance Department

(Rules Division) dated 24.07.1995, clearly stipulates that

for the purposes of grant of Selection Grade, in cases where

an employee has earned a censure, the censure should not be

treated either as an impediment or obstruction for

consideration of his promotion but his case for such a grant

would be deferred by one year.

12. This earning of censure would be a bar for the employee

to be granted Selection Grade for one year only. This is

how it should have been interpreted, and the first office

Order dated 25.01.1992 was to be understood. However, with

regard to issuance of Office Orders from time to time and

clarificatory Circular issued by the State, the things

became much more complicated and confusing, leading to

filing of many Writ Petitions and passing of several orders

by Single Benches and Division Benches of the High Court.

We are thus called upon to set the controversy at rest.

13. In the light of the aforesaid, we have heard Dr. Manish

Singhvi, learned AAG and Mr. V.N. Raghupathy, Advocates for

10

the Appellants and Mr. Puneet Jain, Mr. H.D. Thanvi, Dr.

Monika Gusain and Mr. Rishabh Sancheti, Advocates for the

Respondents at length and have also perused the records.

14. As mentioned hereinabove, the first judgment that came

for the benefit of the Respondent-employee was rendered on

12.12.2003, i.e., Devi Singh's case (supra). However, in the

said case, what has been decided was that an employee who

has already been granted the benefit of Selection Grade,

such benefits could not be taken back by the Appellant-

State, without issuance of a Show Cause Notice to him in

this regard. Thus, primarily and basically, it was decided

in favour of Devi Singh on the ground of violation of

Principles of Natural Justice. However, the cases filed

subsequently either before the Single Bench or Division

Bench were not same, but on account of casual and general

approach of learned counsel appearing on behalf of the

parties who argued and showed that the matters were squarely

covered by Devi Singh's case and hence prayed that these

matters were to be disposed of accordingly, the courts in

their wisdom proceeded to do so. It is relevant to further

mention that the said case of Devi Singh was also followed

11

in the matter of Bheem Singh Versus State of Rajasthan

(SBCWP No.3284/2005) decided on 17.01.2007.

15. There is no doubt that an employee, who has completed 9

years of service, would be entitled for the grant of first

Selection Grade and would further be entitled for the grant

of second Selection Grade after the completion of 18 years

of service and third Selection Grade would be granted to him

after completion of 27 years of service, provided that

during the interregnum period, he has not earned promotion

as may be available in his existing cadre and has also not

earned censure in the past years. This appears to be the

main theme and the purpose for which the first office order

was issued.

16. Clause 7 further makes it clear that only those/such

employees would be entitled to be granted Selection Grade

whose service record has been satisfactory. This implicitly

shows that the person who has an untainted, unblemished,

clean and unpolluted record in service would be treated on a

higher pedestal than those who have either tainted,

blemished, unclean or polluted record. This obviously

appears to be a reasonable classification and is under the

12

ambit and touchstone of Article 14 of the Constitution.

There is neither any ambiguity nor any doubt in the same.

17. However, with an intention to clarify the controversy,

a subsequent office order/letter dated 24.07.1995 was sent

by Finance Department (Rules Division) to Director General

of Police, Rajasthan wherein it was provided that the record

of service which made an employee eligible for promotion on

the basis of seniority was also to be considered to be

satisfactory for the purpose of granting 'Selection Grade'.

It further laid down that if an employee has earned censure,

then his case for grant of Selection Grade would be deferred

by one year. In other words, he would be entitled to get it

but after 1 year, i.e. to say on completion of 10 years of

service as compared to others, who would get it on

completion of 9 years of service.

18. It has not been disputed before us that censure is a

minor penalty and has a minimum penalty as prescribed under

the Rules of Rajasthan. Thus, it cannot be said that an

employee who has earned censure would automatically be

entitled for promotion or respective Selection Grade after

the completion of 9, 18 or 27 years of service.

13 19. However, we need to clarify that during the interregnum

period between the first Office Order, issued on 25.01.1992

and the subsequent clarificatory office order/ letter dated

24.07.1995, some of the employees were granted the benefit

of Selection Grade. The Appellant - State would not be

entitled to claim refund from such employees who have

already been granted benefit in this period. The subsequent

office Order/ letter further makes it clear that all those

employees who have earned censure in service shall also be

entitled for the selection grade but the grant of Selection

Grade to them would be deferred by one year. This appears to

be an absolutely reasonable and perfect classification as

otherwise every employee who has a clean image and another

employee, who has earned censure would be treated at par.

This is not permissible in the service jurisprudence and is

also violative of Article 14 of the Constitution.

20. It is settled principle of law that "like should be

treated alike". This is the mandate and command of Article

14 of the Constitution, which we are required to follow. In

any case, those who have earned censure cannot be treated at

par with those who have had a clean service record. As

14

mentioned hereinabove, an employee with blemished, polluted,

tainted, unclean service record cannot be equated with other

employee who has enjoyed clean, unblemished, unpolluted,

untainted and impeccable service record. Such

differentiation would not be violative of Article 14 while

dealing with the principles of equality.

21. Since the appeals are to be decided on the touch-stone

of Article 14 of the Constitution, in short we would like to

deal with it. This Article has two essential ingredients.

(i) Equality before Law

(ii) Equal protection of Law

The forefathers of our Constitution in their wisdom

incorporated the provision of Equality before Law to attain

justice: social, economic and political. While Equal

protection of Law was incorporated so that amongst equals,

the law could be equally administered and similarly placed

persons could be placed in a similar manner. But this has a

caveat. State still has the power to differentiate amongst

different classes of people. That is to say, it can

positively discriminate on the basis of reasonable

classification and distinction but this must be based upon

15

an intelligible differentia, which inherently separates such

persons from the others.

22. In the case in hand, it is a question of grant of

Selection Grade. A Selection Grade has higher pay but in the

same post. A promotion post is a higher post with higher

pay. A Selection Grade is intended to ensure that capable

employees who may not be able to get a chance of promotion

on account of limited outlets of promotion, should at least

be placed in the Selection Grade to prevent stagnation at

the maximum of the scale. Selection Grade was created to

remove stagnation in service and consequently leading to

greater efficiency. State has permitted grant of Selection

Grade to those who had good service record but for those who

had earned censure, the same has been deferred by one year.

Thus, according to us, it would clearly fall in the category

of reasonable classification which is permissible in

accordance with the mandate of the Constitution and also on

account of various judgments pronounced by this Court on

this topic from time to time.

23. Thus, in our opinion, there is a basic and fundamental

difference between the two categories of the employees.

16 Appellant-State was fully justified in issuing the

subsequent Office Order/ letter dated 24.07.1995, putting

all controversies at rest. We do not find that any case of

discrimination has been made out against the Respondents/

Employees. Subsequent Office Order/ letter cannot be said

to be illegal, arbitrary, unconstitutional or without

authority of law. We find merit in the arguments advanced

by Dr. Manish Singhvi, Advocate for the Appellants and thus,

have no hesitation in allowing these Appeals. It is also

pertinent to mention here that Respondents/Employees had not

challenged the subsequent Office Order/ letter dated

24.07.1995, as being illegal, unconstitutional, arbitrary or

without jurisdiction. As long as this Office Order/ letter

holds good, it is to be implemented in the same manner and

spirit in which it was issued.

24. In the light of the foregoing discussion, we are of the

considered opinion that the impugned orders passed by the

learned Judges of the Division Benches cannot be sustained

in law. Hence, the same are hereby set aside and quashed.

However, looking into the controversies which have been

17

there in the State of Rajasthan since 1992, we deem it fit

and proper to pass the following orders:

(i) The Appellant-State would not be entitled to

recover financial benefits already extended to

the employees, pursuant to the first office

order issued by Appellant on 25.01.1992.

(ii) The Appellant would not also be entitled to

recover any amount which might have been paid to

the employees even after issuance of the second

clarificatory office Order/ letter dated

24.07.1995 as according to us, recovery of such

amount would cause great hardships to the

employees.

(iii)The employees who have earned censure in the past

years for their service record will not be

entitled to be granted `Selection Grade'

alongwith those who have a clean and unblemished

record. They would be granted `Selection Grade'

only one year thereafter.

18 (iv) Any employee who has been promoted before the

said period would not be entitled for the grant

of `Selection Grade'.

25. With the aforesaid direction, this and the connected

appeals are allowed. Impugned orders as mentioned

hereinabove are set aside. Parties to bear their respective

costs.

.........................J.

[DALVEER BHANDARI]

.........................J.

[DEEPAK VERMA]

New Delhi

September 30, 2011